Using a carriage service to procure a person under the age of 16 years to engage in sexual activity
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by Brendan Wilkinson, Criminal Defence Lawyer, Level 4 116 Hardware Street, Melbourne, Victoria
Offence under: Section 474.26 of the Criminal Code Act 1995 (Commonwealth)
Maximum penalty: 15 years
A person may be charged with this offence if he or she has communications of a sexual nature with a child under the age of 16, knowing that the child is under the age of 16 and with the intent of having sexual contact with the child.
It does not matter that the recipient of the communication is a made-up or fictitious person.
For example, it is not a defence if the 14 year old victim turned out to be a 50 year old undercover male police officer.
Definitions and/or examples of key terms
Examples of what would constitute a “carriage service”:
- Mobile phones
- The Internet
- Facebook including Facebook chat
- Chat programs such as mIRC, ICQ, Windows Live Messenger, Skype, AIM, Google chat, Yahoo! Messenger
Procure to engage in sexual activity
Procure: This means to “encourage, entice or recruit the person” to engage in sexual activity or to “induce the person whether by threats, promises or otherwise” to engage in sexual activity
This means sexual intercourse or activity of a sexual or indecent nature.
A jury decides if the activity in question was of a sexual or indecent nature and they are to apply what they regard as the “ordinary standards of decency and propriety in the Australian community.”
Intention to procure
It is not enough to show that the communications were of a sexual nature.
The Prosecution must prove beyond reasonable doubt a number of other matters.
As to fantasizing as a defence to procuring or grooming courts have decided in Victoria that if the Crown cannot exclude the reasonable possibility that the accused was fantasizing it will be fatal to a charge of procuring or grooming. By fantasizing the court means communicating whilst having no intention of engaging in sexual activity with the recipient. An example would be where the communicating was solely to gain sexual satisfaction from the fact of communicating.
The Crown must show that there was an intent on the part of the accused to engage in sexual activity.
In an explanatory memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No 2) 2004 (Cth).
The offence pursuant to Subsection 474.26(1) would apply to acts of procurement where the sender intends to procure the recipient to engage in sexual activity with the sender. The sender must actually intend to procure sexual activity. It is not enough for the prosecution to show that the communications between sender and recipient were of a nature that would suggest the sender wanted to engage in sexual activity with the recipient. The prosecution must prove that the sender had this specific intention.
Belief as to age
The Prosecution must also prove that the sender believed the recipient to be under the age of 16.
For example, Mr XY may say that he did not think that he was communicating to a person under the age of 16.
The Prosecution then has to disprove Mr XY’s belief that the person was over 16.
Ultimately it will be a question for a jury to decide.
The jury must take into account whether Mr XY’s belief was a reasonable belief in the circumstances.
If you are facing any problems regarding this issue, or are just generally apprehensive about going to court, you should feel free to ring Brendan Wilkinson on 0438-670-198 or email email@example.com